So North Carolina voters approved a ballot measure that prohibits same-sex marriages within the state. It became the last southern state to do so... and the 31st overall. It was done during the primary election instead of the general election because the Republican-controlled legislature knew that Democratic turn-out during the primary would be low since there was no real primary taking place within that party. Even so, the vote was close to a 60-40 split. A couple of days later, President Obama announced that he is now firmly in support of same-sex marriage. Some could say that his position has been a full flip-flop from his earlier stance, but if one were to actually look back to when he was serving in the Illinois legislature, you'd see he had the same position. So technically, he's had a full-circle flip-flop.
The LGBT-community erupted in cheers with the announcement from the president, but one needed to see things from a Constitutional viewpoint. Though the president is supportive of the right, the power still resides within Congress to pass such laws to place them in effect. A small body in Congress has the power to withhold basic rights to millions of American citizens. Congress could easily pass legislation that would overturn The Defense of Marriage Act (DOMA), though that would only make the federal government recognize same-sex marriages that are performed legally. States would still have the right to decide whether same-sex marriages were legal within their own borders. Could Congress pass a law then that makes same-sex marriages legal across the nation and force states to recognize them? They could easily pass a law that would nullify all state amendments banning same-sex marriages. Remember, federal laws trump state laws. However, the institution of marriage has been state-sanctioned and not federal. So it would be uncharted territory for Congress to make such a proclamation, and it is unlikely to do so.
LGBT-Americans are not the first minority to face this type of discrimination. For decades (maybe more like centuries), interracial marriages were illegal in many states (or colonies... before the American Revolution). Even after the end of slavery following the Civil War when blacks were granted freedom and citizenship, they were not allowed to marry whites (and whites were not allowed to marry blacks). This might seem a bit odd in today's times since we see it quite regularly. So how did it change? It wasn't an act of Congress. It was actually the Supreme Court. In Loving v. Virginia (1967), the Supreme Court essentially ruled that all laws that prohibited interracial marriage were unconstitutional. LGBT-Americans have also had another issue than just same-sex marriage... namely just sex in general since many states had anti-sodomy laws in place. The Supreme Court would end up striking all of them in Lawrence v. Texas (2003). So is it the Supreme Court we should be watching to make same-sex marriage legal instead of Congress?
Though, as written earlier, Congress does have the right pass such legislation to overturn DOMA, it is unlikely to do so. There are a few cases making their way up through the legal system that challenges the constitutionality of the law. In the end, the Supreme Court will more than likely make a ruling on it once a case (or cases) get that high... should the Court decide to take it on. Seeing how controversial the issue is, the Supreme Court is likely to take it to issue a final ruling. But again, this would only affect the federal government. What about the state bans? There would have to be an entirely different case brought before the Court to make that decision. So are these bans on same-sex marriage unconstitutional? What about DOMA? As they old saying goes, any law passed is constitutional until the Supreme Court declares otherwise. However, Amendment 14 (Section 1) states...
"All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."
As proper American citizens, LGBT-Americans are fundamentally denied certain rights both at the federal and the state levels that are granted to millions of heterosexual Americans. Within that realm, DOMA and all state bans on same-sex marriage would appear to be in violation of the 14th Amendment. Though, when it was passed, it was in reference to emancipated slaves following the end of the Civil War, the 14th Amendment can still resonate even today.
There is one additional caveat to explore. Proposition 8 in California which prohibited same-sex marriage, but it's a slight bit different than other same-sex marriage bans in that it stripped away a right that was already granted. Though the California Supreme Court upheld the voter initiative, a suit was filed in Federal District Court (Perry v. Schwarzenegger). The court did rule that Prop 8 was unconstitutional and violated the Equal Protection Clause and the Due Process Clause of the 14th Amendment. The case was appealed to the Ninth Circuit Court of Appeals (Perry v. Brown) which upheld the lower court's ruling. An appeal has been made to review the case en banc before the Ninth Circuit Court of Appeals. If granted, it could delay the case going to the Supreme Court by up to a year. In any case, it is likely that this case will be appealed all the way to the Supreme Court in the end. And like the lower courts, it is likely that it will find Proposition 8 unconstitutional based on the 14th Amendment. The will of the majority does not have the authority to strip away the rights of a minority group that it disapproves of. Though the decision would probably only strike down Prop 8 in California since it's different that the other same-sex marriage bans, the ramifications of such a decision could still be wide-spread and a major stepping stone to ruling that all the state bans are unconstitutional... giving new fuel to the fire.
As for the people... there has been a dramatic shift since 1996. According to a Gallup poll in 1996, 68% were opposed to same-sex marriage while only 27% were in favor. The past couple of years have seen close to a 50-50 split. In a recent 2012 Gallup poll conducted, 50% are now in favor of same-sex marriage with 48% opposed. Though this does give us a vague idea of what the country is thinking as a whole, it does not tell us what is being thought in the individual states where marriage rights are essentially decided. In the upcoming November elections, this will still be an issue in a few states. Maryland and Washington will be voting to uphold the passage of same-sex marriage. Minnesota voters will be voting on a state ban on same-sex marriages. And Maine will be deciding on whether or not to overturn it's same-sex marriage ban that was passed by the voters in 2009... thus overturning the legislation passed by the Maine legislature.
Regardless of what the final outcome of these decisions are, the ultimate decision could come down the Supreme Court in the end. Though Congress could help everything along with certain legislation, some of the decisions will come from the Court itself. The state bans will not be overturned by any act of Congress. However, DOMA could easily be stripped away if Congress so chose to do so. However, it's an election year, so I doubt it is likely to happen just yet. But the mindset of the people, and the world upon which we reside in, is ever changing... even if it's slowly.
